Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan, 

and Powell, JJ., and Koontz, S.J.

STEVEN DEMILLE

OPINION BY

v. Record No. 110100 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.

January 13, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Dennis J. Smith, Judge

In this appeal, we consider whether in a proceeding under 

the Civil Commitment of Sexually Violent Predators Act 

("SVPA"), Code §§ 37.2-900 et seq., the determination that the 

respondent is likely to engage in sexually violent acts must 

be based solely on expert testimony that states an opinion to 

that effect in express terms. For the reasons that follow, we 

conclude that the factual determination of whether a 

respondent is a sexually violent predator likely to engage in 

sexually violent acts is to be based on the totality of the 

record, including but not limited to expert testimony.

BACKGROUND

The pertinent facts are not in dispute and, pursuant to 

familiar principles, will be viewed in the light most 

favorable to the Commonwealth. Shivaee v. Commonwealth, 270 

Va. 112, 127, 613 S.E.2d 570, 578 (2005). On March 13, 1989, 

pursuant to a guilty plea Steven DeMille was convicted in the 

Circuit Court of Fairfax County of rape. On June 9, 1989, 

DeMille was sentenced to serve twenty-five years imprisonment, 
2

with ten years suspended. DeMille was concurrently serving 

lesser sentences for other offenses. While in prison, DeMille 

was convicted of a weapons violation and sentenced to five 

years, with four years suspended. DeMille was released on 

mandatory parole on August 12, 1999, having served just over 

eleven years of his concurrent sentences, including credit for 

time served while awaiting trial.

Following a determination by the Virginia Parole Board 

that he was unsuitable for parole, DeMille was returned to the 

custody of the Department of Corrections on June 26, 2001 to 

serve the remainder of his active time. DeMille was scheduled 

for release on September 15, 2004. As a consequence of his 

scheduled release and his performance on a standardized risk 

assessment test, DeMille was referred for evaluation by the 

Department of Corrections to the Commitment Review Committee. 

Code § 37.2-903.1

 Based upon DeMille's criminal history and 

his performance on a recidivism risk assessment test, on July 

27, 2004 the Committee advised the Office of the Attorney 

 1 At the time the commitment petition was filed in this 

case, the provisions of the SVPA were codified at Code 

§§ 37.1-70.1 through 37.1-70.19. Unless noted otherwise, in 

all material respects the current version of the SVPA is 

substantially the same as the former version and, accordingly, 

we will cite to the current version of the SVPA in this 

opinion.
3

General of its opinion that DeMille was subject to civil 

commitment under the SVPA. Code § 37.2-904.

On September 14, 2004, the Attorney General filed a 

petition in the circuit court seeking the civil commitment of 

DeMille as a sexually violent predator. Code § 37.2-305. 

Counsel was appointed for DeMille, and a probable cause 

hearing was held on November 9, 2004 pursuant to Code § 37.2-

906. At the conclusion of the hearing, the circuit court 

entered an order finding that there was probable cause to 

believe that DeMille was a sexually violent predator.

Beginning October 4, 2005, the circuit court held a twoday bench trial to determine whether DeMille met the statutory 

criteria for being a sexually violent predator. As relevant 

to the issue addressed in this appeal, the evidence at trial 

consisted of the testimony of three police detectives and a 

probation officer as lay witnesses. Additionally, three 

expert witnesses testified at trial: Lisa Hunt, a licensed 

professional counselor who had provided sex offender therapy 

to DeMille while on probation, and two psychologists, Dr. 

Anita L. Boss, an expert for the Commonwealth, and Dr. Ronald 

M. Boggio, an expert for DeMille. Both Dr. Boss and Dr. 

Boggio also submitted written evaluations of DeMille that were 

received into the evidence by the court.
4

The testimony of the lay witnesses dealt with DeMille's 

criminal history and his difficulty in readjusting to society 

during his probation. Hunt recounted that DeMille had 

disclosed to her his past offenses of "peeping," Code § 18.2-

130, and indecent exposure, Code § 18.2-387, along with 

substance abuse. However, she did not express an opinion 

regarding the likelihood of DeMille re-offending.

With regard to a diagnosis, both Dr. Boss and Dr. Boggio 

concluded that DeMille suffered from a mental defect or 

disorder as defined by the SVPA. Specifically, both experts 

diagnosed DeMille as suffering from exhibitionism, voyeurism, 

and a general personality disorder featuring antisocial and 

narcissistic behavior. Dr. Boss concluded based on her 

evaluation and diagnoses that "DeMille's risk for sexual 

recidivism can be categorized as high." Dr. Boggio concluded 

that "DeMille presents a high risk for sexual re-offending" 

based on an actuarial risk assessment, and further that 

"[t]aking all . . . factors into consideration, it would 

appear that his risk for future sexual re-offending may be 

somewhat higher than that predicted by actuarial variables 

alone."

During her testimony, Dr. Boss conceded that while she 

was able to state within "a reasonable degree of psychological 

certainty [DeMille's] potential of sexually re-offending[,] I 
5

can't give that designation to the potential for sexually 

violent re-offense." According to Dr. Boss, this was so 

because, "[i]n terms of sexually violent re-offense, that's a 

very narrow definition and it's beyond the scope of social 

science." Likewise, Dr. Boggio testified that he could not 

express an opinion regarding DeMille's risk for committing 

another sexually violent act, as opposed to his general risk 

for committing any sexual offense "because the research does 

not allow us to make that distinction."

In his closing argument, DeMille's counsel asserted that 

in order for the circuit court to find that DeMille was 

"likely to engage in sexually violent acts," Code § 37.2-900, 

by clear and convincing evidence, "the Commonwealth is asking 

you . . . to fill in that evidence, to go where the experts 

will not go." DeMille's counsel maintained that the issue was 

not merely a limitation of the scope of social science 

research, but, rather, that the evidence showed that DeMille 

was more likely to commit non-violent acts of voyeurism and 

exhibitionism. Because DeMille "only . . . has one violent 

[sexual] act in his lifetime," and the experts were not able 

to state to a reasonable degree of psychological certainty 

that his likelihood to re-offend was specifically for sexually 

violent offenses, counsel maintained that the Commonwealth had 
6

not established a necessary element of proof that DeMille was 

a sexually violent predator.

On March 27, 2006, the circuit court issued an opinion 

letter in which it set out its findings concerning whether 

DeMille met the criteria for being a sexually violent 

predator. The court noted that there was no dispute that 

DeMille had been convicted of a sexually violent offense and 

that the evidence from both Dr. Boss and Dr. Boggio was 

sufficient to establish that DeMille suffered from a mental 

abnormality or personality disorder and found it difficult to 

control his predatory behavior.

The circuit court devoted most of its analysis to the 

issue, reasserted by DeMille in this appeal, that in order to 

find that his risk of re-offending was specifically for 

sexually violent offenses, the Commonwealth was required to 

present express expert testimony to that effect. The court 

concluded that the SVPA did not require that the nature of a 

respondent's likelihood to re-offend be based on expert 

testimony alone. The court noted that the legislature had 

provided in other parts of the Code for instances where expert 

testimony was the exclusive manner for proving a fact. See, 

e.g., Code § 8.01-581.20 (expert testimony required to 

establish standard of care for medical negligence); Code 

§ 18.2-67.9 (expert testimony required to establish that a 
7

child witness should testify by closed circuit television to 

avoid severe emotional trauma). The court concluded that 

these instances were exceptions to the general rule that a 

trier of fact is not required to give special weight or 

credibility to an expert, and may disregard an expert opinion 

if the evidence as a whole supports a different conclusion. 

Moreover, the court noted that as with any other determination 

of fact, the trier of fact could rely on both direct and 

circumstantial evidence and any reasonable inferences that 

might be drawn therefrom.

Based on these principles of law, the circuit court ruled 

that "DeMille's assertion that findings of causation and 

likelihood of commission of further sexually violent acts can 

only be established if based on expert opinions directly on 

these issues" was not a correct statement of the law with 

regard to SVPA proceedings. Reviewing "the evidence as a 

whole," the court then concluded "that because of his 

personality disorder and his difficulty controlling himself, 

Mr. DeMille is likely to engage in sexually violent acts in 

the future and constitutes a menace to the health and safety 

of others."

On April 26, 2006, the circuit court entered an order 

declaring DeMille to be a sexually violent predator. The 

matter was continued for additional proceedings to determine 
8

whether there was any suitable less restrictive alternative to 

involuntary secure inpatient treatment. Code § 37.2-908(D). 

At the conclusion of these proceedings, the court determined 

that DeMille required secure inpatient treatment and ordered 

him to be committed to the custody of the Department of 

Behavioral Health and Development Services for appropriate 

treatment and confinement in a secure facility. By an order 

dated June 6, 2011, we awarded DeMille an appeal to determine 

whether the circuit court erred in ruling that the 

determination that a respondent in an SVPA proceeding is

likely to engage in future sexually violent acts requires an

express assertion to that effect by an expert witness.2

 2 We also granted DeMille an appeal on the question of 

whether the circuit court erred in overruling a motion, filed 

after the determination had already been made that DeMille was 

a sexually violent predator, to dismiss the commitment 

petition on the ground that it failed to allege that DeMille 

was completing a sentence for a sexually violent offense at 

the time the petition was filed, as was then required by 

former Code § 37.1-70.4. In ruling on this issue, the court 

determined that DeMille was completing his sentence for the 

1989 rape conviction at the time the petition was filed and as 

that offense was alleged to be the predicate offense for the 

commitment proceedings, the petition adequately stated the 

necessary allegations required by the SVPA to initiate a 

commitment proceeding. DeMille principally attacks the 

court's determination that he was actually serving his 

sentence for the rape conviction at the time the petition was 

filed, but only cursorily addresses the issue on appeal, as 

stated in his assignment of error, that the commitment 

petition failed to adequately allege this fact. Disregarding 

DeMille's argument addressed to the factual finding of the 

court, rather than the court's legal conclusion as to the 

adequacy of the pleading, we find that DeMille has not 
9

DISCUSSION

On appeal, DeMille contends that "[i]f the Commonwealth's 

expert [Dr. Boss] could not determine the potential for 

sexually violent offending, the circuit court, considering the 

same evidence, equally could not." DeMille asserts that if 

Dr. Boss was not able to offer an expert opinion as to the 

likelihood that DeMille would re-offend by committing a 

violent sexual offense, the court could not base its finding 

on that issue on the record as a whole because the record "can 

be no better than its constituent elements – and none of those 

elements provided a basis for determining, by clear and 

convincing evidence, that DeMille was 'likely to engage in 

sexually violent acts.' "

The Commonwealth responds that the circuit court 

correctly relied upon the record as a whole to determine the 

ultimate issue in the case, which was whether DeMille met the 

statutory criteria for being a sexually violent predator. In 

making that determination, the Commonwealth notes that this 

Court has stated that "the opinion of experts is not 

dispositive." Commonwealth v. Squire, 278 Va. 746, 751, 685 

S.E.2d 631, 633 (2009). We agree.

 

sufficiently briefed the issue set out in his assignment of 

error, and the issue has thus been waived. Rule 5:17(c)(6); 

Rule 5:27.
10

The circumstances in the present case are the reverse of 

the circumstances in Squire. In that case, the expert 

witnesses for the Commonwealth "agreed that Squire had a 

mental abnormality or personality disorder and . . . because 

of this disorder, Squire was likely to commit sexually violent 

offenses in the future." Id. at 750, 685 S.E.2d at 632. 

However, based on various risk assessment data, the experts 

"could not say that Squire would be one of the individuals who 

would re-offend." Id. Moreover, "[t]he record also show[ed] 

that Squire had not been charged with or convicted of any 

offenses of a sexual nature since 1999. Squire was not 

incarcerated for a number of years during that time - from 

1999 to 2003 and from 2004 to 2006. In 2001 his probation 

officer removed Squire from supervised probation because of 

his compliance with the probation requirements." Id. at 750-

51, 685 S.E.2d at 633. Based upon this record as a whole, the 

trial court concluded that the Commonwealth had not proven by 

clear and convincing evidence that Squire was likely to reoffend by engaging in sexually violent acts in the future and 

dismissed the commitment petition. Id. at 749, 685 S.E.2d at 

632.

On appeal, the Commonwealth contended that the evidence, 

including the "uncontradicted testimony of two experts[,] left 

the trial court with 'the only reasonable conclusion . . . 
11

that Squire is a sexually violent predator.' " Id. In 

affirming the judgment of the trial court, we cited Code 

§ 37.2-908(C), which provides that "[t]he court or jury shall 

determine whether, by clear and convincing evidence, the 

respondent is a sexually violent predator." Thus, we 

concluded that "[w]hile the experts testified that, in their 

opinion, Squire was . . . likely to commit violent sexual 

acts, the opinion of experts [on that issue] is not 

dispositive." Id. at 751, 685 S.E.2d at 633.

The record in Squire showed that the trial court had 

" 'listened carefully to the reports' of the experts but that 

it also considered 'the chronology of the defendant's life.' " 

Id. When considering the record as a whole, the trial court 

had concluded that the Commonwealth had not established by 

clear and convincing evidence that Squire was likely to engage 

in future sexually violent acts. In reviewing that 

determination and affirming the judgment of the trial court, 

we applied the standard applicable to appellate review of

determinations of fact by a trial court or jury, that is, 

whether the finding is "plainly wrong or without evidence to 

support [it]." Id.

The rationale of Squire applies to the present case. 

Thus, the issue is not whether an expert must express an 

opinion that an SVPA commitment respondent is likely to commit 
12

future sexually violent acts in order for the trier of fact to 

find that the respondent is a sexually violent predator. 

Rather, the issue is whether the record as a whole supports

such a determination by the trier of fact by clear and 

convincing evidence. In this respect, our decision in 

Commonwealth v. Miller, 273 Va. 540, 643 S.E.2d 208 (2007), is 

instructive.

In Miller, the Commonwealth appealed the dismissal of an

SVPA commitment petition contending that the trial court had 

erred in concluding that it had not proven Miller was a 

sexually violent predator by clear and convincing evidence. 

We reviewed the entire record and recited the particular 

elements of Miller's mental disorders that made him likely to 

engage in sexually violent acts. Id. at 551-53, 643 S.E.2d at 

214-15. We concluded that the evidence of Miller being a 

sexually violent predator was so overwhelming that the trial 

court's failure to make that determination was plainly wrong 

and without support in the record and remanded the case for 

further proceedings. Id. at 553, 643 S.E.2d at 215-16.

Likewise, in the present case, we consider the record as 

a whole. While it is clear that neither Dr. Boss nor Dr. 

Boggio was able to opine that the sexual offenses DeMille was 

likely to commit in the future would be sexually violent acts 

as defined in Code § 37.2-900, neither could they exclude that 
13

likelihood. Indeed, both experts were equally clear that the 

random, brutal nature of the rape committed by DeMille and 

other elements of his history were significant factors in 

their determination that the likelihood that he would 

re-offend was higher than the actuarial data suggested. 

Additional evidence in the record established that DeMille had 

proven unsuitable for supervised parole, continued to have 

difficulty with impulse control, and sought to minimize or 

excuse his acts of misconduct including the rape. Thus, in 

considering the record as a whole, we cannot say that the 

circuit court's determination that DeMille was a sexually 

violent predator, and specifically the factual determination

that he was likely to engage in future sexually violent acts, 

was plainly wrong or without support in the evidence.

CONCLUSION

For these reasons, we hold that in proceedings under the 

SVPA, it is not necessary for an expert to state with 

specificity that the respondent will likely engage in sexually 

violent acts in the future. Rather, the determination of 

whether the respondent is likely to engage in sexually violent 

acts as defined in Code § 37.2-900 by clear and convincing 

evidence is an issue of fact to be determined by the court or 

jury upon consideration of the whole record. Our review of 

the whole record supports that determination by the circuit 
14

court in this case. Accordingly, the judgment of the circuit 

court that DeMille is a sexually violent predator in need of 

treatment in a secure facility will be affirmed.

Affirmed.